Pace v. Bradley

• Decision Date: 20 December 1948
• Docket Number: No. 9793.,9793.
• Citation: 84 US App. DC 212,171 F.2d 350
• Parties: PACE v. BRADLEY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

84 US App. DC 212, 171 F.2d 350 (1948)

PACE v. BRADLEY.

No. 9793.

United States Court of Appeals District of Columbia Circuit.

Argued November 16, 1948.

Decided December 20, 1948.

Mr. William T. Pace, of Washington, D. C., for appellant.

Mr. Thomas C. Bradley, of Washington, D. C., for appellee.

Mr. Thomas C. Bradley, Jr., of Washington, D. C., also entered an appearance for appellee.

Before STEPHENS, Chief Judge, and PRETTYMAN and PROCTOR, Circuit Judges.

PROCTOR, Circuit Judge.

This is an appeal from two orders of the District Court, one directing the method of distributing the estate of Florence J. Livingston, deceased; the other approving a final account of the executrix made in accordance with those directions. The controversy involves construction of the decedent's will, which was made on a printed form without legal aid, and centers about a part of the second paragraph which reads: "I give, devise and bequeath to my sister Ida J. Bailey, and my niece Lavinia A. Wohlfarth, share and share alike, and at the death of my sister, her share will go to her daughter Florence B. Bradley." No property is specified. Then follows additional handwriting whereby a ring is left to Lavinia A. Wohlfarth and $5 each to several named nephews, grandnieces and a niece. Next is this in writing: "any other relatives attempting to contest this will I leave them each one dollar." Finally, added to the printed part of the residuary clause, the residue of the estate is bequeathed "to my sister Ida J. Bailey, and to my niece Lavinia A. Wohlfarth, share and share alike, * * *." The estate amounted to more than $16,000.

Marshall J. Bailey is among those named to receive a $5 bequest. He has been insane and confined in an institution since 1914. William T. Pace, his guardian ad litem, is the appellant here. Ida J. Bailey, residuary legatee, predeceased the testatrix. Florence B. Bradley, her daughter, appellee here, claims to stand in the place of her mother by virtue of the language of the contested clause.

The guardian ad litem asserts the right of Marshall J. Bailey to share with his sister, Florence B. Bradley, in one-half of the residuum by virtue of Section 110, Title 19, D.C.Code (1940), which reads in part as follows:

"If a devisee or legatee die before the testator, leaving issue who survive the testator, such issue shall take the estate devised or bequeathed as the devisee or legatee would have done if he had survived the testator, unless a different disposition be made or required by the will. * * *"

He argues that the contested clause fails as a bequest because no property is mentioned therein; therefore that the language should be disregarded and treated as meaningless and void. Thus Florence B. Bradley would be eliminated as a substitutional residuary legatee, and by force of the foregoing statute, one-half of the residuary estate, bequeathed to Ida J. Bailey, would vest in both her children, Florence B. Bradley and Marshall J. Bailey.

The trial judge rejected appellant's contention. He held that the intention of testatrix was to "cut off" Marshall J. Bailey with the $5 bequest and to...